SEIU v. Jon Husted, No. 12-4264 (6th Cir. 2013)

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This opinion or order relates to an opinion or order originally issued on October 31, 2012.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 13a0851n.06 FILED No. 12-4264 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1, et al., Plaintiffs-Appellees, v. JON HUSTED, Defendant-Appellant, STATE OF OHIO, Intervenor Defendant-Appellant, and TIMOTHY M. BURKE, et al. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Sep 27, 2013 DEBORAH S. HUNT, Clerk ORDER Before: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge* Plaintiffs-Appellees, various unions, move to dismiss this appeal as moot and vacate this court s precedential order of October 31, 2012, which granted Ohio an emergency stay of injunctive relief ordered by the district court two weeks before the November 2012 elections. Serv. Emps. Int l Union Local 1 v. Husted, 698 F.3d 341 (6th Cir. 2012) (per curiam) (stay order). Though not disputing the mootness of the appeal, Ohio and the Secretary of State opposes vacatur of our stay * The Honorable Lee H. Rosenthal, United States District Judge for the Southern District of Texas, sitting by designation. No. 12-4264 SEIU, Local 1, et al. v. Husted, et al. order. For the following reasons, we DISMISS this appeal as MOOT and DENY SEIU s request for vacatur. The parties agree that Ohio has completed and certified all of the November 2012 election results, and no election contests remain. Because this appeal concerns a preliminary injunction affecting those elections, and because that injunction has now expired by its own terms, we dismiss the appeal as moot. See, e.g., McIntyre v. Levy, No. 06-5989, 2007 WL 7007938, at *1 (6th Cir. Aug. 1, 2007); Congregation Lubavitch v. City of Cincinnati, 941 F.2d 1209 (6th Cir. Aug. 16, 1991) (per curiam) (unpublished table decision). That leaves SEIU s opposition to our stay order and request for vacatur. When a case becomes moot pending appe[al], we have recognized that the established practice . . . in the federal system . . . is to reverse or vacate the judgment below and remand with a direction to dismiss. Coal. for Gov t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 484 85 (6th Cir. 2004) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950)). That said, the equitable relief of vacatur is not applicable in all cases, but is generally appropriate to avoid entrenching a decision rendered unreviewable through no fault of the losing party. Stewart v. Blackwell, 473 F.3d 692, 693 (6th Cir. 2007). And, in the case of interlocutory appeals where the underlying order becomes moot, a number of courts have adopted a contrary usual practice : that of dismissing the appeal without vacating the order appealed from. See, e.g., McLane v. Mercedes-Benz of N. Am., Inc., 3 F.3d 522, 524 n.6 (1st Cir. 1993); In re Tax Refund Litig., 915 F.2d 58, 59 (2d Cir.1990); Marilyn T., Inc. v. Evans, 803 F.2d 1383, 1385 (5th Cir.1986); Gjertsen v. Bd. of Election Comm rs, 751 F.2d 199, 202 (7th Cir.1984); Gaylord Broad. Co. v. Cosmos Broad. -2- No. 12-4264 SEIU, Local 1, et al. v. Husted, et al. Corp., 746 F.2d 251, 254 (5th Cir.1984); see also 13C Charles Alan Wright, et al., Federal Practice & Procedure Jurisdiction ยง 3533.10.3 (3d ed.) (explaining that, in the case of injunction orders that have expired or become moot, if the case remains alive in the district court, it is sufficient to dismiss the appeal without directing that the injunction order be vacated ). We find these cases instructive here, where both the underlying injunction and (necessarily) our stay order became moot upon the completion of the November 2012 election. Resisting this, SEIU argues that vacatur is necessary to prevent Plaintiffs-Appellees from being denied the opportunity to litigate the merits issues raised by this appeal, and because court rules foreclosed en banc review of the stay order. These arguments do not persuade, however, because no final judgment on the merits results from staying a preliminary injunction on emergency review. And the parties could seek a merits ruling from the district court on any pending claims. See, e.g., Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (explaining that the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits ); Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007) (same). Furthermore, SEIU suffered no prejudice by the unavailability of discretionary, en banc review because appellees could have requested emergency review of our unfavorable decision from the Supreme Court. See, e.g., Brunner v. Ohio Republican Party, 555 U.S. 5 (2008) (per curiam); Spencer v. Pugh, 543 U.S. 1301, 1301 03 (2004) (Stevens, Circuit Justice). Our stay order continues to serve a jurisprudential purpose in providing guidance on injunctive relief as it concerns last-second changes to election procedures, justifying our denial of vacatur here. -3- No. 12-4264 SEIU, Local 1, et al. v. Husted, et al. We DISMISS the appeal as MOOT and DENY SEIU s request for vacatur. ENTERED BY ORDER OF THE COURT __________________________________ Deborah S. Hunt. Clerk -4-
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